Microwave Safety Systems Pty Ltd v Commissioner for Fair
Trading, Department of Commerce  NSWSC 37
In order for a search warrant to be issued under the Fair
Trading Act, there must be reasonable grounds to believe that there
was evidence of a contravention of the Act.
In this case, the Department was concerned that the applicant
was making false representations that employers needed to have
microwave ovens in the workplace tested regularly for radiation
leakage in order to meet their duty of care towards employees.
An officer of the Department had applied for a search warrant to
enter citing the following grounds.
"3.1 On and around 20 February 2007 www.microwavesafe.net
contained a document entitled "Microwave Oven Radiation
Leakage Limits - Guidelines" that was in the nature of an
official information bulletin sourced from and approved by bodies
such as ARPANSA, Standards Australia and the National Health and
Medical Research Council and was designed solely to assist
employers meet their workplace safety obligations, rather than
being an advertisement for Microwave Safety Systems Pty Ltd. Such
representation constitutes a contravention of section 44 (f) of the
Fair Trading Act, 1987."
On prima facie this information was sufficient to justify a
search warrant being issued. The difficulty was, however, that the
document referred to, had never appeared on the plaintiff's
The court noted that the necessary belief that an officer must
have on reasonable grounds that there was evidence of a
contravention of a provision of the Act carried with it the
logically anterior requirement of a belief on reasonable grounds
that there has been a contravention of a provision of the Act. In
circumstances where the document had not appeared on the
plaintiff's website, no person in the position of the officer
of Fair Trading could have held a belief on reasonable grounds that
evidence of a contravention of a provision of the Act could have
been found at the premises.
The plaintiff also complained that the range of documents and
things to be searched for in the warrant was too wide. It was
limited to evidence relating to "false representations section
44F [sic] Fair Trading Act 1987" which the court considered
was wholly inadequate as a means of limiting the breadth of the
search. It amounted in effect to the issue of a general warrant as
it did not enable any person receiving the warrant to understand or
ascertain the scope of the search that it authorised.
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This was an interlocutory decision about the appointment of a tutor for the child appellant, to carry on his proceedings.
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